MARY C. FANELLI, APPELLANT,
v.
HSBC BANK USA, APPELLEE

Fla. 4th DCA | 2015-06-03
No. 4D13-4111
WARNER and CONNER, JJ„ concur.
170 So. 3d 72 Florida District Court of Appeal, Fourth District (2015) Caution
Cited by 3 cases

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Holding

An answer in a mortgage foreclosure case that includes a statement about the defendant's obligation to pay attorney's fees for services rendered is sufficient to support a subsequent motion for attorney's fees, even if it does not contain a separate prayer for fees.


Headnotes

[1] A pleading that states a party has retained counsel and agreed to pay a reasonable fee for services is sufficient to support a motion for attorney's fees after a dismissa…

[2] The purpose of pleading a claim for attorney's fees is to notify the opposing party and prevent unfair surprise.

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Facts & Procedural History

Appellant filed an amended answer in a mortgage foreclosure case, including a statement that she had retained counsel and agreed to pay a reasonable f…

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Opinion of the Court
GROSS, J.

GROSS, J.

We reverse an order denying attorney’s fees in a mortgage foreclosure case and hold that an answer that handled attorney’s fees in the same manner as the applicable version of Florida Rule of Civil Procedure Form 1.944 for a complaint was sufficient to support a motion for attorney’s fees after a dismissal.

*73In 2010, appellant, Mary Fanelli, filed an amended answer in a mortgage foreclosure case. As a common allegation to her affirmative defenses, the pleading said: “Defendant has retained the undersigned to represent her and has agreed to pay the Law Offices of W. Trent Steele a reasonable fee for their services.” The answer contained no separate prayer or demand for attorney’s fees.

The trial judge involuntarily dismissed the case without prejudice on the first day of trial. Fanelli moved for attorney’s fees pursuant to Florida Rule of Civil Procedure 1.525 and section 57.105(7), Florida Statutes (2014). The trial court denied the motion because the amended answer failed to adequately plead for attorney’s fees.

“[A] claim for attorney’s fees, whether based on statute or. contract, must be pled.” Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991). “By pleading a claim to attorney’s fees, a party notifies the opposing party and prevents unfair surprise.” Caufield v. Cantele, 837 So.2d 371, 377 (Fla.2002).

The Florida Supreme Court has held that “Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver.” Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261, 1263 (Fla.1998). “Pleading specificity is not required; ‘the contractual or statutory basis for the attorney fee need not be specifically pled and failure to so plead does not result in a waiver of the claim.’ ” Dickson v. Heaton, 87 So.3d 81, 83 (Fla. 4th DCA 2012) (quoting Canfield, 837 So.2d at 379-80).

If the purpose of the Stockman pleading requirement is to give notice to an opposing party, a sentence in a mortgage foreclosure pleading stating that a party has hired attorneys and is obligated to pay a reasonable fee for their services is sufficient to alert the other side that attorney’s fees might come into play.

This is the approach taken by the version of Florida Rule of Civil Procedure Form 1.944 in effect prior to December 11, 2014, when the amendments to Form 1.944 went into effect. See In re Amendments to the Florida Rules of Civil Procedure, 153 So.3d 258, 262 (Fla.2014). Setting forth a mortgage foreclosure complaint, pre-2014 Form 1.944 contains a statement about the plaintiffs fee agreement with its attorneys, but no separate prayer for attorney’s fees. In mortgage foreclosures, attorney’s fees are typically sought by the prevailing plaintiff under the loan documents. Pre-2014 Form 1.944 uses only this language pertaining to attorney’s fees: “Plaintiff is obligated to pay plaintiffs attorneys a reasonable fee for their services.” The form’s “wherefore” clause demands both a foreclosure judgment and a deficiency judgment, but says nothing about attorney’s fees. Rule 1.900(b) states that the civil forms “are sufficient for the matters that are covered by them.” Attorney’s fees are “covered” in paragraph 8 of pre-2014 Form 1.944, leading to the conclusion that the rule’s level of pleading specificity is sufficient to support a later claim for attorney’s fees. If such language suffices in a complaint, it performs the same function in an answer. As Fanelli argues, what is good for the goose is good for the gander.

We note that on December 11, 2014, the Supreme Court adopted Florida Rule of Civil Procedure 1.115, entitled “Pleading Mortgage Foreclosures” and Forms 1.944(a) and (b) for mortgage foreclosure complaints. Both new forms require specification of the basis for an award of attorney’s fees as well as a demand for fees in the “Wherefore” clause. Thus, new Form 1.944(a) provides, in pertinent part:

*748. Plaintiff is obligated to pay plaintiffs attorneys a reasonable fee for their services. Plaintiff is entitled to recover its attorneys’ fees under .... (allege statutory and/or contractual bases, as applicable)....
WHEREFORE, plaintiff demands judgment foreclosing the mortgage, for costs (and, when applicable, for attorney s’ fees), and, if the proceeds of the sale are insufficient to pay plaintiffs claim, a deficiency judgment.

(Emphasis in original). In the future, to properly plead for attorney’s fees in mortgage foreclosure cases, litigants will have to comply with the new pleading form.

The trial court denied attorney’s fees based upon American Express Bank International v. Inverpan, S.A., 972 So.2d 269 (Fla. 8d DCA 2008). That case reversed an award of attorney’s fees based on a complaint similar to the one in this case, with a sentence about the plaintiffs being obligated to their lawyers for fees, but nothing in the complaint or “wherefore” clause demanding or requesting fees. Id. at 270. However, the third district distinguished American Express from a mortgage foreclosure case involving former Form 1.944, leaving open the possibility that in a case where the form applied, the court could have reached a different result.

We reverse the order denying the motion for attorney’s fees and remand for further proceedings consistent with this opinion.

WARNER and CONNER, JJ„ concur.


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Citator

Cited By

  • Suarez v. THE Bank of NEW York Mellon Tr. Co., 325 So. 3d 205 (Fla. 2d DCA 2021)
    …een no pleading in the foreclosure or deficiency action claiming entitlement); Grosso v. HSBC Bank USA, N.A. ex rel. ACE Sec. Corp., 275 So. 3d 642, 644 (Fla. 4th DCA 2019) ("The homeowner also requested attorney's fees."); Fanelli v. HSBC Bank USA, 170 So. 3d 72, 73 (Fla. 4th DCA 2015) (applying Stockman pleading requirement to section 57.105(7) fees in a foreclosure action); cf. Tunison v. Bank of Am., N.A., 144 So. 3d 588, 590-91 (Fla. 2d DCA 2014) ("Mr. Tunison's motion to dismiss was not a pleading. B…
  • Zurro v. Wells Fargo Bank, N.A., 209 So. 3d 27 (Fla. 2d DCA 2016)
    …unsel failed to "plead specifically a request for attorney’s fees.” However, unlike our case, Inverpan involved an amended single-count complaint with no prayer for attorney’s fees where no further amendment was sought. Cf. Fanelli v. HSBC Bank USA, 170 So. 3d 72, 73 (Fla. 4th DCA 2015) (“If the purpose of the Stockman pleading requirement is to give notice to an opposing party, a sentence in a mortgage foreclosure pleading stating that a party has hired attorneys and is obligated to pay a reasonable fee for…

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